Healy v. Edwards

• Decision Date: 31 August 1973
• Docket Number: Civ. A. No. 73-688.
• Parties: Marsha B. HEALY et al., Plaintiffs, v. Hon. Edwin EDWARDS, Governor of La., et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

363 F. Supp. 1110

Marsha B. HEALY et al., Plaintiffs, v. Hon. Edwin EDWARDS, Governor of La., et al., Defendants.

Civ. A. No. 73-688.

United States District Court, E. D. Louisiana.

August 31, 1973.

George Strickler, New Orleans, La., Ruth Bader Ginsburg, New York City, Sylvia Roberts, Baton Rouge, La., for plaintiffs.

Warren E. Mouledoux, Baton Rouge, La., Dale C. Wilks, Robert L. Danner, Jr., New Orleans, La., for defendants.

Before WISDOM, Circuit Judge, and RUBIN and WEST, District Judges.

RUBIN, District Judge:

The Louisiana Constitution¹ and statutes² exempt women from service on juries unless they file a written declaration of their desire to serve. This benign dispensation has resulted in jury panels that, in the parishes here involved, have never included more than five percent females, and frequently less. The plaintiffs in this class action seek a declaration that the exemption provisions violate the rights of the class to Equal Protection and Due Process of the Law, and an injunction against continued enforcement of these laws.

I.

Three separate classes of suitors join in the attack: (a) one comprises all females in the named parishes; these women contend that both their right to serve on juries and their opportunity, should occasion arise, to litigate before juries is abridged; (b) another comprises all males in those parishes; these men contend that they are subject to more onerous jury service because similarly situated females are not required to serve; and (c) the third, the intervening class, is composed of female litigants in civil cases in state court; these contend they are deprived of a jury of their peers.

Because the jurisdiction of federal courts is limited by the Constitution to "Cases" and "Controversies," Art. III, Sec. 2, U.S. Constitution, they may not issue merely advisory opinions concerning the constitutionality of legislation, federal or state. Indeed the power to declare a statute unconstitutional is deduced from the necessity of determining its validity in order to decide a particular case or controversy.

A case, in the constitutional sense, must present a real controversy. A statute may be attacked as unconstitutional only by someone who has sustained or is in immediate danger of sustaining some direct injury from its enforcement. It does not suffice to show that one is injured merely as a member of the body politic. Frothingham v. Mellon, 1923, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078.

This is what is meant by standing to sue, the requirement that, to justify attack on legislation, a litigant be able to show injury by the statute, "for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of value interests of concerned by-standers." United States v. SCRAP, 1973, 412 U.S. 669, at p. 687, 93 S.Ct. 2405, at p. 2416, 37 L.Ed.2d 254.

In SCRAP only a few weeks ago, the Supreme Court focused the light of the decisions on standing: the test is whether the litigant can show "injury in fact," that he has been or will in fact be "perceptibly harmed." The litigants in SCRAP met that test by alleging a "specific and perceptible harm that distinguished them from other citizens."

It is not necessary that the harm be great or substantial; it suffices that it be small, indeed a trifle, so long as it distinguishes a person with a direct stake in the outcome of the litigation from a person with a mere interest in the problem. SCRAP, 412 U.S. at p. 689, 93 S.Ct. at p. 2415, and note 14.

We pretermit the question whether all females as a class suffer a specific and perceptible harm when required to write a letter in order to serve on juries or whether the greater burden of jury service imposed on males by the virtual exemption of females from jury duty is a palpable enough trifle. Together these two classes — all women and all men — comprise the entire adult citizenry, and they allege in effect a harm to the body politic. It may be questioned whether, if the entire citizenry is aggrieved by official action, they may seek judicial relief instead of following the political route accorded by the democratic process.

But there is a class of persons joined in prosecuting this suit who have both a direct and a personal interest: the intervenors representing women who have suits pending in state court.

Litigants have standing to allege the unconstitutionality of a statute or practice that potentially denies their right to Due Process of Law by interfering with fair jury selection.³ The intervenors' standing to sue gives justiciability to the entire case. "A court has discretion to treat the pleading of an intervenor as a separate action in order that it might adjudicate the claims raised by the intervenor." Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323, 328-329. Accord: Atkins v. State Board of Education, 4 Cir. 1969, 418 F.2d 874, 876; Hackner v. Guaranty Trust Co., 2 Cir. 1941, 117 F.2d 95, 98.

The intervenors represent, through Ms. Baggett, females actually engaged in litigation in state courts. To deprive them of a jury comprising a fair cross section of the population, including females, is a claim of "sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Golden v. Zwickler, 1969, 394 U.S. 103, 89 S.Ct. 956, 959, 22 L.Ed.2d 113. "Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection." Carter v. Jury Commission, 1970, 396 U.S. 320, 90 S.Ct. 518, 523, 24 L.Ed.2d 549.

It is unnecessary to probe whether these litigants would have standing to challenge the provisions of the Louisiana Code of Criminal Procedure for jury selection in criminal cases, were that issue presented alone. Their right to challenge the Louisiana constitutional provision having been established, the issue of the entire scope of jury selection in all kinds of cases appears to be inescapably involved.

II.

Only twelve years ago, in Hoyt v. Florida, 1961, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118, the Supreme Court upheld the constitutionality of a Florida statute almost identical to the challenged provisions of the Louisiana Constitution. That decision was followed in Leighton v. Goodman, S.D.N.Y.1970, 311 F.Supp. 1181, and United States v. Caci, 2 Cir. 1968, 401 F.2d 664. Hoyt rested on the finding that Florida's statute was based on a reasonable classification and the venerable dictum in Strauder v. West Virginia, 1879, 100 U.S. 303, 310, 25 L. Ed. 664, unchallenged for eighty years, that a State may constitutionally confine jury duty "to males."

But the ground on which Strauder stood was eroded by Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, and crevassed by Frontiero v. Richardson, 1973, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583. In Reed the court held that an Idaho statute violated the Equal Protection Clause in providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. By according different treatment to applicants on the basis of their sex, the statute "establishes a classification subject to scrutiny under the Equal Protection Clause." Reed, supra, 92 S.Ct. at 253.

"The Equal Protection Clause . . . denies to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." (Emphasis supplied.) Id. at 253-254. By ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are thus similarly situated." Id. at 254.

While only four justices were willing in Frontiero to conclude that classifications based upon sex "are inherently suspect," eight justices agreed that it was unconstitutional for Congress, solely for administrative convenience, to deny a female member of the uniformed services the right to claim her spouse as a dependent for the purposes of obtaining increased quarters allowances and medical and dental benefits without proving his actual dependency, while according this right to males with respect to female dependency. Three concurring justices found that Reed "abundantly supports our decision today." 411 U.S. at 692, 93 S.Ct. at 1773.

The minimum requirement of Equal Protection, then is that dissimilar treatment may no longer constitutionally be provided for men and women who are similarly situated with respect to the objectives of the legislation. The objective of the state legislation here attacked is the method of selecting juries. The state does not contend that there is any difference between males and females with respect to their qualifications or competency as jurors. Nor could it do so, for women's full competency is demonstrated by their complete acceptability if they volunteer. Hence the state constitutional provision patently fails to meet the requirements of Equal Protection for women as potential jurors. Female litigants having standing to sue can properly raise this issue which applies to women as a class.

Female litigants are also denied Equal Protection by being compelled to have their cases decided by juries composed entirely or predominantly of males. If this were proper sauce for geese, there might be gander gravy too: states might with equal logic grant jury exemptions only to all male wage earners who do not ask to serve, with the result that litigants, male and female, would be compelled in practice to submit to verdicts by predominantly female juries. Males might then properly question whether they were being afforded Equal Protection of the laws.⁴

The Nineteenth Amendment brought women the right to vote, and freed them from strictures that had 43 years earlier been lifted from those males who had formerly been denied...